5. Considerations
5.1 Awards
5.1.1 Availability of Funds
All Select Phase I awards are subject to availability of funds. NASA has no obligation to make any specific number of awards based on this solicitation, and may elect to make several or no awards in any specific technical topic or subtopic.
| Select SBIR Contracts |
| Phase I contracts will be firm-fixed-price, for values not exceeding $200,000, and contractors will have up to 6 months to carry out their projects, prepare their final reports, and submit Phase II proposals. |
5.1.2 Contracting
To simplify contract award and reduce processing time, all contractors selected for Select Phase I contracts should ensure that:
- All information in your proposal is current, e.g., your address has not changed, the proposed PI is the same, etc... If changes have occurred since submittal of your proposal, notify contracting officer immediately.
- Your firm is registered in CCR and all information is current. NASA uses the CCR to populate its contract and payment systems; if the information in the CCR is not current your award and payments will be delayed. If updates have been made, notify contracting officer immediately.
- The representations and certifications in ORCA (Online Representations and Certifications Application) are current.
- The VETS 100 report submitted by your firm to the Department of Labor is current and submitted to the contracting officer within 10 business days of the notification of selection for negotiation.
- Your firm HAS NOT proposed a Co-Principal Investigator.
- Your firm has a timely response to all communications from the NSSC Contracting Officer.
From the time of proposal notification of selection for negotiation, until the award of a contract, all communications shall be submitted electronically to NSSC-SBIR-STTR@nasa.gov.
Note: Costs incurred prior to and in anticipation of award of a contract are entirely the risk of the contractor in the event that a contract is not subsequently awarded. A notification of selection for negotiation is not to be misconstrued as an award notification to commence work.
Select Phase I Model Contract
An example of the Select Phase I contracts can be found in the in the NASA SBIR/STTR Firm Library: https://sbir.gsfc.nasa.gov/sbir/firm_library/index.html. Note: Model contracts are subject to change.
5.2 Select Phase I Reporting
The technical reports are required as described in the contract and are to be provided to NASA. These reports shall document progress made on the project and activities required for completion. Periodic certification for payment will be required as stated in the contract. A final report must be submitted to NASA upon completion of the Phase I R/R&D effort in accordance with applicable contract provisions.
All required reports shall be submitted electronically via the EHB. Everyone with access to the NASA network will be required to use the NASA Account Management System (NAMS). This is the Agency's centralized system for requesting and maintaining accounts for NASA IT systems and applications. The system contains user account information, access requests, and account maintenance processes for NASA employees, contractors, and remote users such as educators and foreign users. A basic background check is required for this account.
5.3 Payment Schedule for Select Phase I
All NASA Select SBIR contracts are firm-fixed-price contracts. The exact payment terms for the Select Phase I will be included in the contract.
Invoices: All invoices are required to be submitted electronically via the SBIR/STTR website in the EHB.
5.4 Release of Proposal Information
In submitting a proposal, the offeror agrees to permit the Government to disclose publicly the information contained on the Proposal Summary (Form B). Other proposal data is considered to be the property of the offeror, and NASA will protect it from public disclosure to the extent permitted by law including the Freedom of Information Act (FOIA).
5.5 Access to Proprietary Data by Non-NASA Personnel
5.5.1 Non-NASA Reviewers
In addition to Government personnel, NASA, at its discretion and in accordance with 1815.207-71 of the NASA FAR Supplement, may utilize qualified individuals from outside the Government in the proposal review process. Any decision to obtain an outside evaluation shall take into consideration requirements for the avoidance of organizational or personal conflicts of interest and the competitive relationship, if any, between the prospective contractor or subcontractor(s) and the prospective outside evaluator. Any such evaluation will be under agreement with the evaluator that the information (data) contained in the proposal will be used only for evaluation purposes and will not be further disclosed.
5.5.2 Non-NASA Access to Confidential Business Information
In the conduct of proposal processing and potential contract administration, the Agency may find it necessary to provide proposal access to other NASA contractor and subcontractor personnel. NASA will provide access to such data only under contracts that contain an appropriate NFS 1852.237-72 Access to Sensitive Information clause that requires the contractors to fully protect the information from unauthorized use or disclosure.
5.6 Proprietary Information in the Proposal Submission
If proprietary information is provided by an applicant in a proposal, which constitutes a trade secret, proprietary commercial or financial information, confidential personal information or data affecting the national security, it will be treated in confidence to the extent permitted by law. This information must be clearly marked by the applicant as confidential proprietary information. NASA will treat in confidence pages listed as proprietary in the following legend that appears on the Cover Sheet (Form A) of the proposal:
"This data shall not be disclosed outside the Government and shall not be duplicated, used, or disclosed in whole or in part for any purpose other than evaluation of this proposal, provided that a funding agreement is awarded to the offeror as a result of or in connection with the submission of this data, the Government shall have the right to duplicate, use or disclose the data to the extent provided in the funding agreement and pursuant to applicable law. This restriction does not limit the Government's right to use information contained in the data if it is obtained from another source without restriction. The data subject to this restriction are contained in pages ____ of this proposal."
Note: Do not label the entire proposal proprietary. The Proposal Summary (Form B), and the Briefing Chart should not contain proprietary information; and any page numbers that would correspond to these must not be designated proprietary in Form A.
Information contained in unsuccessful proposals will remain the property of the applicant. The Government will, however, retain copies of all proposals.
5.7 Limited Rights Information and Data
The clause at FAR 52.227-20, Rights in Data-SBIR/STTR Program, governs rights to data used in, or first produced under, any Phase I or Phase II contract. The following is a brief description of FAR 52.227-20, it is not intended to supplement or replace the FAR.
5.7.1 Non-Proprietary Data
Some data of a general nature are to be furnished to NASA without restriction (i.e., with unlimited rights) and may be published by NASA. This data will normally be limited to the project summaries accompanying any periodic progress reports and the final reports required to be submitted. The requirement will be specifically set forth in any contract resulting from this solicitation.
5.7.2 Proprietary Data
If the contractor desires to continue protection of proprietary data, it shall deliver form, fit, and function data and shall not deliver the proprietary data. Data is considered to be "proprietary" when the data is developed at a private expense and (1) embodies trade secrets or contains commercial, financial and confidential, privileged information, or (2) is computer software.
5.7.3 Non-Disclosure Period
For a period of 4 years after acceptance of all items to be delivered under an SBIR /STTR contract, the Government agrees to use these data for Government purposes only and they shall not be disclosed outside the Government (including disclosure for procurement purposes) during such period without permission of the Contractor, except that subject to the foregoing use and disclosure prohibitions, such data may be disclosed for use by support Contractors. After the aforesaid 4-year period, the Government has a royalty-free license to use, and to authorize others to use on its behalf, these data for Government purposes, but is relieved of all disclosure prohibitions and assumes no liability for unauthorized use of these data by third parties.
5.7.4 Copyrights
Subject to certain licenses granted by the contractor to the Government, the contractor receives copyright to any data first produced by the contractor in the performance of an SBIR/STTR contract.
5.7.5 Invention Reporting, Election of Title and Patent Application Filing
NASA Select SBIR contracts will include FAR 52.227-11 Patent Rights - Ownership by the Contractor, which requires the SBIR/STTR contractors to do the following. Contractors must disclose all subject inventions to NASA within two (2) months of the inventor's report to the awardees. A subject invention is any invention or discovery which is or may be patentable, and is conceived or first actually reduced to practice in the performance of the contract. Once the contractor discloses a subject invention, the contractor has up to 2 years to notify the Government whether it elects to retain title to the subject invention. If the contractor elects to retain title, a patent application covering the subject invention must be filed within 1 year. If the contractor fails to do any of these within time specified periods, the Government has the right to obtain title. To the extent authorized by 35 USC 205, the Government will not make public any information disclosing such inventions, allowing the contractor the permissible time to file a patent.
Per the NASA FAR Supplement 1852.227-11 Patent Rights--Retention by the Contractor (Short Form) the awardee may use whatever format is convenient to report inventions. NASA prefers that the awardee use either the electronic or paper version of NASA Form 1679, Disclosure of Invention and New Technology (Including Software), to report inventions. Both the electronic and paper versions of NASA Form 1679 may be accessed at the electronic New Technology Reporting Web site http://ntr.ndc.nasa.gov/.
A New Technology Summary Report (NTSR) listing all inventions developed under the contract or certifying that no inventions were developed must be also be submitted. Both NASA Form 1679 and the NTSR shall also be uploaded to the SBIR/STTR EHB at https://ehb8.gsfc.nasa.gov/contracts/public/firmHome.do
5.8 Profit or Fee
Select Phase I contracts may include a reasonable profit. The reasonableness of proposed profit is determined by the Contracting Officer during contract negotiations. Reference FAR 15.404-4.
5.9 Joint Ventures and Limited Partnerships
Both joint ventures and limited partnerships are permitted, provided the entity created qualifies as an SBC in accordance with the definition in section 2.19. A statement of how the workload will be distributed, managed, and charged should be included in the proposal. A copy or comprehensive summary of the joint venture agreement or partnership agreement should be appended to the proposal. This will not count as part of the 23-page limit for the Phase I proposal.
5.10 Essentially Equivalent Awards and Prior Work
If an award is made pursuant to a proposal submitted under either, Select SBIR, SBIR or STTR Solicitations, the firm will be required to certify with every invoice that it has not previously been paid nor is currently being paid for essentially equivalent work by any agency of the Federal Government. Failure to report essentially equivalent or duplicate efforts can lead to the termination of contracts or civil or criminal penalties.
5.11 Contractor Commitments
Upon award of a funding agreement, the awardee will be required to make certain legal commitments through acceptance of numerous clauses in Phase I funding agreements. The outline that follows is illustrative of the types of clauses to which the contractor would be committed. This list is not a complete list of clauses to be included in Phase I funding agreements, and is not the specific wording of such clauses.
- Standards of Work. Work performed under the funding agreement must conform to high professional standards.
- Inspection. Work performed under the funding agreement is subject to Government inspection and evaluation at all times.
- Examination of Records. The Comptroller General (or a duly authorized representative) must have the right to examine any pertinent records of the awardee involving transactions related to this funding agreement.
- Default. The Government may terminate the funding agreement if the contractor fails to perform the work contracted.
- Termination for Convenience. The funding agreement may be terminated at any time by the Government if it deems termination to be in its best interest, in which case the awardee will be compensated for work performed and for reasonable termination costs.
- Disputes. Any dispute concerning the funding agreement that cannot be resolved by agreement must be decided by the contracting officer with right of appeal.
- Contract Work Hours. The awardee may not require an employee to work more than 8 hours a day or 40 hours a week unless the employee is compensated accordingly (for example, overtime pay).
- Equal Opportunity. The awardee will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin.
- Affirmative Action for Veterans. The awardee will not discriminate against any employee or application for employment because he or she is a disabled veteran or veteran of the Vietnam era.
- Affirmative Action for Handicapped. The awardee will not discriminate against any employee or applicant for employment because he or she is physically or mentally handicapped.
- Officials Not To Benefit. No Government official must benefit personally from the SBIR funding agreement.
- Covenant Against Contingent Fees. No person or agency has been employed to solicit or secure the funding agreement upon an understanding for compensation except bona fide employees or commercial agencies maintained by the awardee for the purpose of securing business.
- Gratuities. The funding agreement may be terminated by the Government if any gratuities have been offered to any representative of the Government to secure the award.
- Patent Infringement. The awardee must report each notice or claim of patent infringement based on the performance of the funding agreement.
- American Made Equipment and Products. When purchasing equipment or a product under the SBIR funding agreement, purchase only American-made items whenever possible.
5.12 Additional Information
5.12.1 Precedence of Contract Over Solicitation
This Program Solicitation reflects current planning. If there is any inconsistency between the information contained herein and the terms of any resulting Select SBIR contract, the terms of the contract are controlling.
5.12.2 Evidence of Contractor Responsibility
In addition to the information required to be submitted in section 3.2.10, before award of an SBIR contract, the Government may request the offeror to submit certain organizational, management, personnel, and financial information to establish responsibility of the offeror. Contractor responsibility includes all resources required for contractor performance, i.e., financial capability, work force, and facilities.
5.12.3 1852.225-70 Export Licenses
The contractor shall comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). Offerors are responsible for ensuring that all employees who will work on this contract are eligible under export control and International Traffic in Arms (ITAR) regulations. Any employee who is not a U.S. citizen or a permanent resident may be restricted from working on this contract if the technology is restricted under export control and ITAR regulations unless the prior approval of the Department of State or the Department of Commerce is obtained via a technical assistance agreement or an export license. Violations of these regulations can result in criminal or civil penalties. For further information on ITAR visit http://www.pmddtc.state.gov/regulations_laws/itar.html. For additional assistance, refer to http://sbir.gsfc.nasa.gov/SBIR/export_control.html or contact the ARC export control administrator, Mary Williams, at mary.p.williams@nasa.gov.
5.12.4 Government Furnished and Contractor Acquired Property
Title to property furnished by the Government or acquired with Government funds will be vested with the NASA, unless it is determined that transfer of title to the contractor would be more cost effective than recovery of the equipment by NASA.
5.13 Required Registrations and Submissions
5.13.1 Central Contractor Registration
Offerors should be aware of the requirement to register in the Central Contractor Registration (CCR) database prior to contract award. To avoid a potential delay in contract award, offerors are required to register prior to submitting a proposal. Additionally, firms must certify the NAICS code of 541712.
The CCR database is the primary repository for contractor information required for the conduct of business with NASA. It is maintained by the Department of Defense. To be registered in the CCR database, all mandatory information, which includes the DUNS or DUNS+4 number, and a CAGE code, must be validated in the CCR system. The DUNS number or Data Universal Number System is a 9-digit number assigned by Dun and Bradstreet Information Services (http://www.dnb.com) to identify unique business entities. The DUNS+4 is similar, but includes a 4-digit suffix that may be assigned by a parent (controlling) business concern. The CAGE code or Commercial Government and Entity Code is assigned by the Defense Logistics Information Service (DLIS) to identify a commercial or Government entity. If an SBC does not have a CAGE code, one will be assigned during the CCR registration process.
The DoD has established a goal of registering an applicant in the CCR database within 48 hours after receipt of a complete and accurate application via the Internet. However, registration of an applicant submitting an application through a method other than the Internet may take up to 30 days. Therefore, offerors that are not registered should consider applying for registration immediately upon receipt of this solicitation. Offerors and contractors may obtain information on CCR registration and annual confirmation requirements via the Internet at http://www.ccr.gov or by calling 888-CCR-2423 (888-227-2423).
5.13.2 52.204-8 Annual Representations and Certifications
Offerors should be aware of the requirement that the Representation and Certifications required from Government contractors must be completed through the Online Representations and Certifications Application (ORCA) website https://orca.bpn.gov/login.aspx. FAC 01-26 implements the final rule for this directive and requires that all offerors provide representations and certifications electronically via the BPN website; to update the representations and certifications as necessary, but at least annually, to keep them current, accurate and complete. NASA will not enter into any contract wherein the Contractor is not compliant with the requirements stipulated herein.
5.13.3 52.222-37 Employment Reports on Special Disabled Veterans, Veterans of the Vietnam-Era, and Other Eligible Veterans
In accordance with Title 38, United States Code, Section 4212(d), the U.S. Department of Labor (DOL), Veterans' Employment and Training Service (VETS) collects and compiles data on the Federal Contractor Program Veterans' Employment Report (VETS-100 Report) from Federal contractors and subcontractors who receive Federal contracts that meet the threshold amount of $100,000. The VETS-100 reporting cycle begins annually on August 1 and ends September 30. Any federal contractor or prospective contractor that has been awarded or will be awarded a federal contract with a value of $100,000 or greater must have a current VETS 100 report on file. Please visit the DOL VETS 100 website at http://www.dol.gov/vets/programs/fcp/main.htm. NASA will not enter into any contract wherein the firm is not compliant with the requirements stipulated herein.
5.13.4 1852.225-72 Restriction on funding Activity with China - Representation.
(a) Definition - "China" or "Chinese-owned" means the People's Republic of China, any firm owned by the People's Republic of China or any firm incorporated under the laws of the People's Republic of China.
(b) Public Laws 112-10, Section 1340(a) and 112-55, Section 536, restrict NASA from contracting to participate, collaborate, or coordinate bilaterally in any way with China or a Chinese-owned firm with funds appropriated on or after April 25, 2011. Contracts for commercial and non-developmental items are excepted from the prohibition as they constitute purchase of goods or services that would not involve participation, collaboration, or coordination between the parties.
(c) Representation. By submission of its offer, the offeror represents that the offeror is not China or a Chinese-owned firm.
5.13.5 Software Development Standards
Offerors proposing projects involving the development of software should comply with the requirements of NASA Procedural Requirements (NPR) 7150.2, "NASA Software Engineering Requirements" are available online at http://nodis3.gsfc.nasa.gov/displayDir.cfm?t=NPR&c=7150&s=2.
5.13.6 Human and/or Animal Subject
Due to the complexity of the approval process, use of human and/or animal subjects is not allowed for Phase I contracts.
5.13.7 HSPD-12
Firms that require access to federally controlled facilities for six consecutive months or more must adhere to the following:
PIV Card Issuance Procedures in accordance with FAR clause 52.204-9 Personal Identity Verification of Contractor Personnel.
Purpose: To establish procedures to ensure that recipients of contracts are subject to essentially the same credentialing requirements as Federal Employees when performance requires physical access to a federally-controlled facility or access to a Federal information system for six consecutive months or more. (Federally -controlled facilities and Federal information system are defined in FAR 2.101(b)(2)).
Background: Homeland Security Presidential Directive 12 (HSPD-12), "Policy for a Common Identification Standard for Federal Employees and Contractors", and Federal Information Processing Standards Publication (FIPS PUB) Number 201, "Personal Identity Verification (PIV) of Federal Employees and Contractors" require agencies to establish and implement procedures to create and use a Government-wide secure and reliable form of identification NLT October 27, 2005. See: http://csrc.nist.gov/publications/fips/fips201-1/FIPS-201-1-chng1.pdf.In accordance with the FAR clause 52.204-9 Personal Identity Verification of Contractor Personnel which states in parts contractor shall comply with the requirements of this clause and shall ensure that individuals needing such access shall provide the personal background and biographical information requested by NASA.
If applicable, detailed procedures for the issuance of a PIV credential can be found at the following URL:
http://itcd.hq.nasa.gov/PIV.html.
5.14 False Statements
Knowingly and willfully making any false, fictitious, or fraudulent statements or representations may be a felony under the Federal Criminal False Statement Act (18 U.S.C. Sec 1001), punishable by a fine of up to $10,000, up to five years in prison, or both. The Office of the Inspector General has full access to all proposals submitted to NASA.
